Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4805 OF 2019
(ARISING OUT OF SLP (C) NO.29642 OF 2016)
Mangathai Ammal (Died) through
LRs and Others ..Appellant(s)
Versus
Rajeswari & Others ..Respondent(s)
J U D G M E N T
M.R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
Judgment and Order passed by the High Court of Judicature at
Madras dated 05.01.2016 passed in AS No.785 of 1992
dismissing the same and affirming the Judgment and Decree
dated 05.08.1992 passed by the learned Subordinate Judge, Arni
1http://itatonline.org
in O.S. No.124 of 1990 decreeing the suit for partition by original
plaintiff, the original defendant nos. 1 to 3 have preferred the
present appeal.
3. The facts leading to the present appeal in nutshell are
as under :
That, one Rajeswari and Othersoriginal
plaintiffs
instituted a suit bearing O.S. No.124 of 1990 for partition of the
suit properties and separate possession. It was the case on behalf
of the plaintiffs that the first defendant is the wife of one
Narayanasamy Mudaliar. That, the said Narayanasamy Mudaliar
and original defendant no.1 had one son and three daughters
namely Elumalai (son), Ranganayaki (daughter), Nagabushanam
(daughter) and Navaneetham (daughter). That, the son Elumalai
and daughter Ranganayaki had died. The first plaintiff is the wife
of Elumalai, the second plaintiff and plaintiff nos. 3 to 8 are the
husband and children of the deceased Ranganayaki. That,
Elumalai and the first plaintiff did not have issue. According to
the original plaintiffs, Narayanasamy Mudaliar sold the ancestral
properties and purchased the suit property in the name of first
defendant Mangathai
Ammal (wife of Narayanasamy Mudaliar).
2http://itatonline.org
Therefore, it was the case on behalf of the plaintiffs that
Narayanasamy Mudaliar and his son Elumalai are entitled to half
share of the ancestral properties. That, it was the case on behalf
of the plaintiffs that the same Narayanasamy Mudaliar had died
twenty years back to the filing of the suit. His share in the
properties was inherited by Elumalai, defendant nos. 1 and 2 viz
Nagabushanam Ammal and Ranganayaki Ammal. That, the
Ranganayaki died about six years before filing of suit, therefore,
her legal representatives viz original plaintiff nos.2 to 8 inherited
her share in the properties. That, the Nagabushanam executed
the Release Deed dated 24.04.1990 in favour of the first
defendant. According to the plaintiffs, the first plaintiff is entitled
to 5/8th share, plaintiff nos. 2 to 8 are entitled to 1/8th share
and the defendants are entitled to 1/4th share in the suit
properties. According to the plaintiffs, since the defendant tried
to claim the suit properties, the plaintiffs filed the present suit for
partition.
3.1 The suit was resisted by the defendants. As per the
case of the first defendant, except item nos. 1 and 3 of the suit
properties, the other properties are selfacquired
properties of the
3http://itatonline.org
first defendant. According to the first defendant, the first item of
the suit property was purchased out of the money provided by
her in her name. According to the first defendant, the suit
properties are not the ancestral properties of Narayanasamy
Mudaliar. It was denied that the suit properties were purchased
by selling the ancestral properties. It was the case on behalf of
the defendant no.1 that except properties in item nos. 1 and 3 of
Schedule II, the properties were purchased by the defendant no.1
out of the stridhana she received from her parents’ house and by
selling the gold jewellery. It was also the case on behalf of
defendant no.1 that after purchasing the property from
Thangavel Gounder and others; she constructed a house and is
in possession and enjoyment of the said property. According to
the defendant no.1, the deceased Narayanasamy Mudaliar was
entitled to 47 cents in Survey No. 218/1 and 8 cents in Survey
No. 218/3 and the deceased Ranganayaki Ammal is entitled to
1/5th share in the suit properties. It was also the case on behalf
of the first defendant that, similarly, the first plaintiff’s husband
is also entitled to 1/5th share, in which, first defendant and first
plaintiff are entitled to half share in the suit properties. According
to the first defendant, the first defendant’s daughter
4http://itatonline.org
Nagabhushanam executed a Release Deed in respect of her own
share. It was also the case on behalf of the first defendant that
she never acted as a manager of the joint family. According to
her, she executed a Will dated 11.02.1987 in favour of plaintiff
nos. 1 and 2 and Nagabhushanam Ammal. However, since the
beneficiaries of the Will did not take care of the first defendant,
she revoked the Will on 11.06.1990.
3.2 Defendant nos. 2 and 3 supported defendant no.1.
According to defendant nos. 2 and 3, defendant no.1 mortgaged
the property with defendant no. 3 for a valuable consideration,
which was also known to the plaintiffs. Defendant nos. 2 and 3
also adopted the written statement filed by defendant no.1.
3.3 That the learned Trial Court framed the following
issues:
“1) Whether the suit schedule properties are
ancestral properties of husband of the 1st plaintiff
namely Elumalai and the deceased
Narayansamy?
2) Whether it is true that the 1st defendant had
managed the suit schedule properties being the
Manager of the Family?
3) Whether it is true that the Suit Schedule
properties are jointly enjoyed by all the family
members as Joint Family Property?
5http://itatonline.org
4) Whether the plaintiffs are entitled to claim
partition in view of the Release Deed dated
24.04.90 executed by Nagabooshanam Ammal?
5) Whether it is true that the 1st defendant had
executed a Will on 11.2.87 to and in favour of
plaintiffs in respect of suit schedule property and
revoked the said Will on 11.6.90?
6) Whether it is true that the plaintiffs are in
joint possession of the suit schedule properties?
7) Whether the plaintiffs are entitled to get 3/4th
share over the suit schedule properties?
8) Whether the present suit is not valued
properly?
9) To what relief the plaintiffs are entitled?
3.4 Before the Trial Court, on the side of the plaintiffs,
four witnesses were examined and three documents Exh. A1 to
A3 were marked. On the side of the defendants, two witnesses
were examined and 19 documents Exh. B1 to B19 were marked.
That, the learned Trial Court, after taking into consideration the
oral and documentary evidences of both the sides, passed a
preliminary decree finding that the plaintiffs are entitled to 3/4th
share in the suit properties. Feeling aggrieved and dissatisfied
with the Judgment and Decree passed by the Trial Court, the
original defendant nos. 1 to 3 preferred appeal before the High
Court. That, by impugned Judgment and Order, the High Court
has dismissed the said appeal and has confirmed the Judgment
6http://itatonline.org
and Decree passed by the Trial Court. Feeling aggrieved and
dissatisfied with the impugned Judgment and Order passed by
the High Court dismissing the appeal and confirming the
Judgment and Decree passed by the learned Trial Court, original
defendant nos.1 to 3 have preferred the present appeal.
4. Shri V. Prabhakar, learned Counsel has appeared on
behalf of the appellantsoriginal
defendants and Shri G. Balaji,
learned Counsel has appeared on behalf of the respondentsoriginal
plaintiffs.
5. Shri V. Prabhakar, learned Counsel appearing on
behalf of the original defendant nos.1 to 3 has vehemently
submitted that in the facts and circumstances of the case, both,
the learned Trial Court as well as the High Court have committed
a grave error in decreeing the suit and holding that the original
plaintiffs have 3/4th share in the suit properties.
5.1 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellantsoriginal
defendant
nos.1 to 3 that the suit properties were purchased by defendant
no.1 out of the stridhana she received from her parents and by
selling the gold jewellery. It is submitted that, admittedly, the suit
7http://itatonline.org
properties were purchased in the name of original defendant no.1
and was in possession of defendant no.1. It is submitted
therefore, the finding that the properties were purchased by
Narayanasamy Mudaliar is erroneous.
5.2 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellantsoriginal
defendant
nos.1 to 3 that if it was the case on behalf of the original
plaintiffs that the properties purchased in the name of defendant
no.1 were the benami transactions, in that case, the onus is/was
upon the plaintiffs to prove by leading cogent evidence that the
transactions were benami transactions. It is submitted that in
the present case, the plaintiffs have failed to discharge the onus
to prove that the transactions were benami transactions. It is
submitted that, both, the Trial Court as well as the High Court
had erroneously shifted the burden upon the defendants to prove
that the transactions/Sale Deeds in favour of defendant no.1
were not benami transactions. It is submitted that the aforesaid
is contrary to the settled proposition of law laid down by this
Court.
8http://itatonline.org
5.3 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellantsoriginal
defendant
nos.1 to 3 that in the present case, solely on considering two
documents, namely, Exh. B3, Sale Deed in respect of one of the
properties and Exh. B4, the Sale Deed with respect of two
properties, the Courts below have considered the entire suit
properties as ancestral properties and/or the same properties
purchased from the funds raised by selling the ancestral
properties.
5.4 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellantsoriginal
defendant
nos.1 to 3 that merely because some consideration or part
consideration was paid by the husband at the time of purchase of
property at Exh. B3Sale
Deed and/or merely purchasing the
stamp papers while purchasing the property at Exh. B4Sale
Deed, it cannot be said that the same properties as such were
purchased from the funds raised by selling the ancestral
properties and/or the same were purchased for and on behalf of
joint family.
9http://itatonline.org
5.5 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellantsoriginal
defendant
nos.1 to 3 that both the Courts below have materially erred in
misinterpreting the Release Deed at Exh. A1. It is submitted that
both the Courts below have materially erred in holding the suit
properties as joint family properties of Narayanasamy Mudaliar
on the ground that execution of Release Deed at Exh. A1 by
Nagabhushanam on payment of Rs.10,000/to
Nagabhushanam
and on such payment Nagabhushanam released her share in the
property, was good to hold that the properties are the joint family
properties of Narayanasamy Mudaliar.
5.6 It is further submitted by Shri V. Prabhakar, learned
Counsel appearing on behalf of the appellantsoriginal
defendant
nos.1 to 3 that even considering the documentary evidences on
record, more particularly, Exh. B3 to B7, it can be seen that the
suit properties were purchased in the name of defendant no.1
were purchased much prior to the sale of some of the ancestral
properties of Narayanasamy Mudaliar. It is submitted that,
therefore, the case on behalf of the plaintiffs that the suit
properties were purchased in the name of defendant no.1 out of
10http://itatonline.org
the funds raised on selling the ancestral properties of
Narayanasamy Mudaliar, cannot be accepted. Relying upon
paragraph 10 of the decision of this Court in the case of Om
Prakash Sharma v. Rajendra Prasad Shewda, (2015) 15 SCC 556,
it is submitted by Shri V. Prabhakar, learned Counsel appearing
on behalf of the appellants that as the transactions/Sale Deeds
in favour of defendant no.1 were prior to the enactment of the
Hindu Succession Act and the amendments made thereto from
time to time, even it can be said that the intention of the
Narayanasamy Mudaliar to purchase the properties in the name
of defendant no.1his
wife was in order to provide the wife with a
secured life in the event of his death.
5.7 Shri V. Prabhakar, learned Counsel appearing on
behalf of the appellantsoriginal
defendant nos.1 to 3 submitted
that even otherwise, the plaintiffs have failed to prove by leading
cogent evidence that the transactions of sale in favour of
defendant no.1 were benami transactions. It is submitted by Shri
V. Prabhakar that even in the plaint also there were no specific
pleadings that the sale transactions of the suit properties in
favour of defendant no.1 were benami transactions. It is
11http://itatonline.org
submitted that even the learned Trial Court also did not frame
any specific issue with respect to benami transactions. It is
submitted that even otherwise on merits also and on considering
the recent decision of this Court in the case of P. Leelavathi v. V.
Shankarnarayana Rao (2019) 6 SCALE 112, in which after
considering the earlier decisions of this Court in the case of
Jaydayal Poddar v. Bibi Hazra (Mst.) (1974) 1 SCC 3; Thakur
Bhim Singh v. Thakur Kan Singh (1980) 3 SCC 72; Binapani Paul
v. Pratima Ghosh (2007) 6 SCC 100 and Valliammal v.
Subramaniam (2004) 7 SCC 233, it cannot be said that the Sale
Deeds executed in favour of defendant no.1 were benami
transactions.
5.8 Making above submissions and relying upon above
decisions it is prayed to allow the present appeal.
6. Present appeal is vehemently opposed by Shri G.
Balaji, learned Counsel appearing on behalf of the respondentsoriginal
plaintiffs.
6.1 Shri G. Balaji, learned Counsel appearing on behalf of
the respondentsoriginal
plaintiffs has vehemently submitted that
on appreciation of entire evidence on record, both, learned Trial
12http://itatonline.org
Court as well as the High Court, have rightly held that the
transactions of sale in favour of defendant no.1 were benami
transactions as the said properties were purchased by
Narayanasamy Mudaliar in the name of defendant no.1 out of the
funds received from selling the ancestral properties. It is
submitted that on considering the documentary evidences Exh.
B3, B4 and even Exh. A1, the High Court has rightly observed
and held that the transactions/Sale Deeds in favour of defendant
no.1 were benami transactions and therefore the plaintiffs are
entitled to 3/4th share in the suit properties which were
purchased in the name of defendant no.1 but purchased out of
the funds received from selling the ancestral properties by
Narayanasamy Mudaliar.
6.2 It is further submitted by Shri G. Balaji, learned
Counsel appearing on behalf of the respondentsoriginal
plaintiffs
that in the present case, all the conditions to prove the
transactions as benami transactions as laid down by this Court
in the case of P. Leelavathi (Supra) have been satisfied.
6.3 It is vehemently submitted by Shri G. Balaji, learned
Counsel appearing on behalf of the respondentsoriginal
plaintiffs
13http://itatonline.org
that in the present case, even from the intention and conduct of
the parties it is proved that though the properties were in the
name of defendant no.1, they were purchased and enjoyed as
Joint Family Properties. It is submitted that otherwise the
Nagabhushanam would not have released her share in favour of
defendant no.1, if the daughter Nagabhushanam had no share. It
is submitted that execution of the Release Deed by
Nagabhushanam in favour of defendant no.1 suggests that
defendant no.1 also considered the share of the daughter
Nagabhushanam by treating the suit properties as Joint Family
Properties.
6.4 It is further submitted by Shri G. Balaji, learned
Counsel appearing on behalf of the respondentsoriginal
plaintiffs
that the Will dated 11.02.1987, executed by defendant no.1, also
included even the properties exclusively belonging to
Narayanasamy Mudaliar. It is submitted, therefore, the intention
can be gathered from Exh. B8 and Exh. B9 that the suit
properties are Joint Family Properties and therefore liable for
partition and not exclusive properties of defendant no.1.
14http://itatonline.org
6.5 It is further submitted by Shri G. Balaji, learned
Counsel appearing on behalf of the respondentsoriginal
plaintiffs
that the suit properties were purchased in the name of defendant
no.1 during the lifetime of Narayanasamy Mudaliar. It is
submitted that original defendant no.1 had no independent
income. It is submitted that Narayanasamy Mudaliar had
ancestral properties/agricultural lands which were generating
income and he purchased all the properties in the name of his
wifedefendant
no.1 from the income generated from the
ancestral properties and by selling some of the ancestral
properties.
6.6 It is further submitted by Shri G. Balaji, learned
Counsel appearing on behalf of the respondentsoriginal
plaintiffs
that even the statutory presumption which was rebuttable under
Section 3 (2) of the Benami Transaction Act, 1988 has been
omitted by Benami Amendment Act of 2016. It is submitted that
therefore as on date, there is no such statutory presumption that
the purchase made in the name of wife or children is for their
benefit.
15http://itatonline.org
6.7 Making above submissions and relying upon above
decisions it is prayed to dismiss the present appeal.
7. Heard the learned Counsel appearing on behalf of the
respective parties at length. We have gone through and
considered in detail the findings recorded by the learned Trial
Court as well as the High Court. We have also considered in
detail the evidences on record both oral as well as documentary.
7.1 At the outset, it is required to be noted that the
original plaintiffs instituted the suit before the learned Trial
Court for partition of the suit properties and claiming 3/4th share
with the pleadings that the suit properties were ancestral
properties and that the Narayanasamy Mudaliar has purchased
the suit properties in the name of his wifedefendant
no.1 out of
the funds derived through selling his share of the property
acquired through ancestral nucleus to some other person and
that the suit properties were in absolute possession and
enjoyment of the Joint Family Property since the date of
purchase. From the pleadings, it appears that it was not
specifically pleaded by the plaintiffs that the Sale
Deeds/transactions in favour of defendant no.1 were benami
16http://itatonline.org
transactions. It was also not pleaded that the suit properties were
purchased in the name of defendant no.1 by Narayanasamy
Mudaliar from the income derived out of the ancestral properties.
Even the learned Trial Court did not specifically frame the issue
that whether the transactions/Sale Deeds in favour of defendant
no.1 are benami transactions or not? Despite the above, learned
Trial Court and the High Court have held that the
transactions/Sale Deeds in favour of defendant no.1 were benami
transactions. The aforesaid findings recorded by the Trial Court
confirmed by the High Court and the consequent relief of
partition granted in favour of the plaintiffs is the subject matter
of the present appeal.
8. While considering the issue involved in the present
appeal viz. whether the transactions/Sale Deeds in favour of
defendant no.1 can be said to be benami transactions or not, the
law on the benami transactions is required to be considered and
few decisions of this Court on the aforesaid are required to be
referred to.
8.1 In the case of Jaydayal Poddar (Supra) it is specifically
observed and held by this Court that the burden of proving that a
17http://itatonline.org
particular sale is benami and the apparent purchaser is not the
real owner, always rests on the person asserting it to be sold. It is
further observed that this burden has to be strictly discharged by
adducing legal evidence of a definite character which would either
directly prove the fact of the benami transaction or establish
circumstances unerringly and reasonably raising an interference
of that fact. In paragraph 6 of the aforesaid decision, this Court
has observed and held as under :
“6. “It is wellsettled
that the burden of proving
that a particular sale is benami and the apparent
purchaser is not the real owner, always rests on
the person asserting it to be so. This burden has
to be strictly discharged by adducing legal
evidence of a definite character which would
either directly prove the fact of benami or
establish circumstances unerringly and
reasonably raising an inference of that fact. The
essence of a benami is the intention of the party
or parties concerned; and not unoften, such
intention is shrouded in a thick veil which
cannot be easily pierced through. But such
difficulties do not relieve the person asserting the
transaction to be benami of any part of the
serious onus that rests on him; nor justify the
acceptance of mere conjectures or surmises, as a
substitute for proof. The reason is that a deed is
a solemn document prepared and executed after
considerable deliberation, and the person
expressly shown as the purchaser or transferee
in the deed, starts with the initial presumption in
his favour that the apparent state of affairs is the
real state of affairs. Though the question whether
18http://itatonline.org
a particular sale is benami or not, is largely one
of fact, and for determining this question, no
absolute formulae or acid tests, uniformly
applicable in all situations, can be laid down; yet
in weighing the probabilities and for gathering
the relevant indicia, the courts are usually
guided by these circumstances:(1) the source
from which the purchase money came; (2) the
nature and possession of the property, after the
purchase; (3) motive, if any, for giving the
transaction a benami colour; (4) the position of
the parties and the relationship if any, between
the claimant and the alleged benamidar; (5) the
custody of the title deeds after the sale and (6)
the conduct of the parties concerned in dealing
with the property after the sale.
In the case of Thakur Bhim Singh (Supra) this Court in
paragraph 18 observed and held as under :
“18. The principle governing the determination of
the question whether a transfer is a benami
transaction or not may be summed up thus: (1)
the burden of showing that a transfer is a
benami transaction lies on the person who
asserts that it is such a transaction; (2) it is
proved that the purchase money came from a
person other than the person in whose favour the
property is transferred, the purchase is prima
facie assumed to be for the benefit of the person
who supplied the purchase money, unless there
is evidence to the contrary; (3) the true character
of the transaction is governed by the intention of
the person who has contributed the purchase
money and (4) the question as to what his
intention was has to be decided on the basis of
the surrounding circumstances, the relationship
of the parties, the motives governing their action
19http://itatonline.org
in bringing about the transaction and their
subsequent conduct, etc.”
8.2 In the case of P. Leelavathi (Supra) this Court held as
under :
“9.2 In Binapani Paul case (Supra), this Court
again had an occasion to consider the nature of
benami transactions. After considering a catena
of decisions of this Court on the point, this Court
in that judgment observed and held that the
source of money had never been the sole
consideration. It is merely one of the relevant
considerations but not determinative in
character. This Court ultimately concluded after
considering its earlier judgment in the case of
Valliammal v. Subramaniam (2004) 7 SCC 233
that while considering whether a particular
transaction is benami in nature, the following six
circumstances can be taken as a guide:
“(1) the source from which the purchase money
came;
(2) the nature and possession of the property,
after the purchase;
(3) motive, if any, for giving the transaction a
benami colour;
(4) the position of the parties and the
relationship, if any, between the claimant and
the alleged benamidar;
(5) the custody of the title deeds after the sale;
and
20http://itatonline.org
(6) the conduct of the parties concerned in
dealing with the property after the sale.
(Jaydayal Poddar v. Bibi Hazra (supra), SCC p. 7,
para6)”
8.3 After considering the aforesaid decision in the recent
decision of this Court in the case of P. Leelavathi (Supra), this
Court has again reiterated that to hold that a particular
transaction is benami in nature the aforesaid six circumstances
can be taken as a guide.
8.4 Applying law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and the reasoning
given by the Trial Court confirmed by the High Court, it appears
that both, the learned Trial Court and the High Court have erred
in shifting the burden on the defendants to prove that the sale
transactions were not benami transactions. As held hereinabove
in fact when the plaintiffs’ claim, though not specifically pleaded
in the plaint, that the Sale Deeds in respect of suit properties,
which are in the name of defendant no.1, were benami
transactions, the plaintiffs have failed to prove, by adducing
cogent evidence, the intention of the Narayanasamy Mudaliar to
21http://itatonline.org
purchase the suit properties in the name of defendant no.1 – his
wife.
9. Even the reasoning and the findings recorded by the
Trial Court confirmed by the High Court while holding the Sale
Deeds/transactions in favour of defendant no.1 as benami
cannot be said to be germane and or fulfilling the circumstances
as carved out by this Court in the aforesaid decisions.
9.1 The first reason which is given by the learned Trial
Court while holding the suit properties as benami transactions is
that part sale consideration was paid by Narayanasamy Mudaliar
at the time of the purchase of the property vide Sale Deed Exh.
B3. As held by this Court in catena of decisions referred to
hereinabove, the payment of part sale consideration cannot be
the sole criteria to hold the sale/transaction as benami. While
considering a particular transaction as benami, the intention of
the person who contributed the purchase money is determinative
of the nature of transaction. The intention of the person, who
contributed the purchase money, has to be decided on the basis
of the surrounding circumstances; the relationship of the parties;
the motives governing their action in bringing about the
22http://itatonline.org
transaction and their subsequent conduct etc. It is required to be
noted that Narayanasamy Mudaliar, who contributed part sale
consideration by purchasing property at Exh. B3, might have
contributed being the husband and therefore by mere
contributing the part sale consideration, it cannot be inferred
that Sale Deed in favour of the defendant no.1wife
was benami
transaction and for and at behalf of the joint family. Therefore,
the Trial Court as well as the High Court have committed a grave
error in holding the suit properties as benami
transactions/ancestral properties on the basis of the document
at Exh. B3.
9.2 Similarly, merely because of the stamp duty at the
time of the execution of the Sale Deed at Exh. B4 was purchased
by Narayanasamy Mudaliar, by that itself it cannot be said that
the Sale Deed at Exh. B4 in favour of defendant no.1 was benami
transaction. It is required to be noted that except the aforesaid
two documentary evidences at Exh. B3 and B4, no other
documentary evidence/transaction/Sale Deed in favour of
defendant no.1 have been considered by the learned Trial Court
and even by the High Court.
23http://itatonline.org
9.3 Now, so far as the findings recorded by the Trial Court
and the High Court on considering the Release Deed at Exh. A1
viz. the Release Deed executed by Nagabushanam in favour of
defendant no. 1 on payment of Rs.10,000/and
therefore
inference drawn by the learned Trial Court and the High Court
that therefore even the defendant no.1 also considered the share
of the daughter and considered the suit properties as joint family
properties and therefore plaintiffs have also share in the suit
properties is concerned, the said finding is just a misreading
and
misinterpretation
of the evidence on record. In her deposition,
defendant no.1 has explained the payment of Rs.10,000/to
Nagabushanam, daughter and the Release Deed executed by her.
It is specifically stated by her that though she had no share in
the suit properties, with a view to avoid any further litigation in
future and to be on safer side, Rs.10,000/is
paid and the
Release Deed was got executed by Nagabushanam in favour of
defendant no.1. Even in the Release Deed at Exh. A1, it is so
specifically stated. Therefore, merely because to avoid any further
litigation in future and though Nagabushanam had no share in
the suit properties, Rs.10,000/was
paid and the Release Deed
was got executed in favour of defendant no.1, by that itself, it
24http://itatonline.org
cannot be said that defendant no.1 treated the suit properties as
ancestral properties and/or Joint Family Properties.
9.4 Even considering the Will executed by defendant no.1
dated 11.02.1987 and the subsequent revocation of the Will is
suggestive of the fact that defendant no.1 all throughout treated
the suit property as her selfacquired
property which according to
her were purchased from the Stridhana and selling of the
jewellery.
10. It is required to be noted that in the plaint the
plaintiffs came out with the case that the suit properties
purchased in the name of defendant no.1 by Narayanasamy
Mudaliar from the funds raised by selling the ancestral properties
received by him. It was never the case on behalf of the plaintiffs
that the suit properties were purchased by Narayanasamy
Mudaliar in the name of defendant no.1 out of the income
received from the ancestral properties. However, considering the
date of transactions with respect to the suit properties and the
ancestral properties sold by Narayanasamy Mudaliar, it can be
seen that all the suit properties purchased in the name of
defendant no.1 were much prior to the sale of the ancestral
25http://itatonline.org
properties by Narayanasamy Mudaliar. The ancestral property
was sold by the Narayanasamy Mudaliar (Exh. A3) was on dated
11.11.1951. However, the Sale Deeds at Exh. B3, B4, B5, B6 and
B7 which are in favour of defendant no.1 were much prior to the
sale of the property at Exh. A3. Therefore, also it cannot be said
that the suit properties were purchased in the name of defendant
no.1 by Narayanasamy Mudaliar from the funds received by
selling of the ancestral properties.
11. Even considering the observations made by this Court
in paragraph 10 in the case of Om Prakash Sharma (Supra) it
can be said that Narayanasamy Mudaliar might have purchased
the properties in the name of defendant no.1 in order to provide
his wife with a secured life in the event of his death. It is required
to be noted that it was the specific case on behalf of the
defendant no.1 that the suit properties were purchased by her
from the Stridhana and on selling of the jewellery.
12. It is required to be noted that the benami transaction
came to be amended in the year 2016. As per Section 3 of the
Benami Transaction (Prohibition) Act 1988, there was a
presumption that the transaction made in the name of the wife
26http://itatonline.org
and children is for their benefit. By Benami Amendment Act,
2016, Section 3 (2) of the Benami Transaction Act, 1988 the
statutory presumption, which was rebuttable, has been omitted.
It is the case on behalf of the respondents that therefore in view
of omission of Section 3(2) of the Benami Transaction Act, the
plea of statutory transaction that the purchase made in the name
of wife or children is for their benefit would not be available in
the present case. Aforesaid cannot be accepted. As held by this
Court in the case of Binapani Paul (Supra) the Benami
Transaction (Prohibition) Act would not be applicable
retrospectively. Even otherwise and as observed hereinabove, the
plaintiff has miserably failed to discharge his onus to prove that
the Sale Deeds executed in favour of defendant no.1 were benami
transactions and the same properties were purchased in the
name of defendant no.1 by Narayanasamy Mudaliar from the
amount received by him from the sale of other ancestral
properties.
12.1 Once it is held that the Sale Deeds in favour of
defendant no.1 were not benami transactions, in that case, suit
properties, except property nos. 1 and 3, which were purchased
27http://itatonline.org
in her name and the same can be said to be her selfacquired
properties and therefore cannot be said to be Joint Family
Properties, the plaintiffs cannot be said to have any share in the
suit properties (except property nos. 1 and 3). At this stage, it is
required to be noted that the learned Counsel appearing on
behalf of defendant no.1 has specifically stated and admitted that
the suit property Item nos. 1 and 3 can be said to be the
ancestral properties and according to him even before the High
Court also it was the case on behalf of the defendant no.1 that
item nos. 1 and 3 of the suit properties are ancestral properties.
13. In view of the above and for the reasons stated above,
the present appeal is partly allowed. The impugned judgement
and order passed by the High Court as well as the Trial Court
holding that the plaintiffs have 3/4th share in the suit properties
(Except Item Nos. 1 and 3 of the suit properties) are hereby
quashed and set aside. It is observed and held that except Item
Nos. 1 and 3 of the suit properties, the plaintiffs have no share in
other suit properties. Preliminary Decree directed to be drawn by
the learned Trial Court, confirmed by the High Court, is hereby
28http://itatonline.org
directed to be modified accordingly. The present appeal is partly
allowed to the aforesaid extent. No costs.
……………………………….J.
[L. NAGESWARA RAO]
New Delhi; ……………………………….J.
May 09, 2019. [M.R. SHAH]
29